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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Michael J. Liberati :

Plaintiff, : Civil Action No.: 2:05-cv-1661

v. :

: PLAINTIFF’S

BRT, INC. : PRETRIAL MEMORANDUM

and :

Harold Mast, President :

BRT, INC. :

Defendants. :

Plaintiff’sPretrialMemorandum

Pursuant to the United States District Court Eastern District of Pennsylvania

Local Rules of Civil Procedure, Rule 16.1(c), Pretrial Procedure, the plaintiff files the

following pretrial memorandum.

I. Jurisdictional Statement

This action seeks redress for violations of rights guaranteed under Title I and Title

V of the Americans with Disabilities Act of 1990 (ADA), as codified, 42 U.S.C. § 12101

et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 et seq., 42 U.S.C.

§ 1981a et seq. and 42 U.S.C. § 1988 et seq., which incorporates by reference Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.; the Pennsylvania Human

Relations Act, as amended, Section 5, 43 P.S. § 951 et seq. (PHRA) and state/federal law

governing intentional and/or negligent infliction of emotional distress.

The plaintiff invokes the jurisdiction of the Court pursuant to Title I and Title V

of the Americans with Disabilities Act of 1990 (ADA), as codified, 42 U.S.C. § 12101 et

seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 et seq., 42 U.S.C. §

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1981a et seq., and 42 U.S.C. § 1988 et seq., which incorporates by reference Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.; and pursuant to 28 U.S.C. §§

1331, 1343, 2201, 2202, subject matter jurisdiction and 28 U.S.C. § 1367, supplemental

jurisdiction, since all state law claims are so related to the claims within the original

jurisdiction of the Court that they form part of the same case and/or controversy. The

amount in controversy exceeds, exclusive of interest and costs, the sum of $150,000.00,

one hundred and fifty thousand dollars.

The plaintiff timely filed a charge of discrimination/harassment/retaliation with

the Pennsylvania Human Relations Commission (PHRC) which charge was dual filed

with the Equal Employment Opportunity Commission (EEOC). Efforts by the

PHRC/EEOC to obtain voluntary compliance with the defendants have been

unsuccessful. The alleged unlawful practices of the defendants were not eliminated

through conciliation, conference and/or persuasion.

The plaintiff has complied with all the jurisdictional and administrative

prerequisites to this action under the applicable statutes. The plaintiff was issued a right

to sue letter by the EEOC which letter was dated and mailed to him on February 4, 2005.

II. Short Statement of Facts

The plaintiff, Michael J. Liberati, is an adult male who resides at 516 Turnbridge

Court, Avondale PA 19311. He is a citizen of the United States and a resident of this

District. Defendant, BRT, Inc., is a business/corporation, qualified to transact business in

the Commonwealth of Pennsylvania. BRT, Inc. maintains its principal place of business

at 813 North Octorara Trail, Parkesburg, PA 19365-0419. BRT, Inc. is a

trucking/transport company. BRT, Inc. employed the plaintiff from July, 2001 until

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December, 2002. BRT, Inc.,did(atthetimeoftheplaintiff’semployment)and

continues to employ 15 or more employees as per the ADA and the PHRA. Defendant,

Harold Mast, is the President of BRT, Inc.. He is being sued individually and/or in his

official capacity as a representative of BRT, Inc. as provided by the PHRA.

The plaintiff was (during the time of his employment with BRT, Inc.) and

continues to be a qualified individual with a disability as provided by the ADA and the

PHRA. The plaintiff was diagnosed with depression and Attention Deficit Hyperactivity

Disorder (ADHA) in 2000. ADD/ADHA is a lifelong disability that is a genetically

based neurodevelopment disorder with chronic neuropsychiatric sequellae and

comorbiditywithanxietydisorders,depressionandsubstanceuse/abuse.Theplaintiff’s

disabilities substantially limit his ability to perform several major life activities including

concentrating and thinking.

The plaintiff was employed by the defendant, BRT, Inc., as a router/dispatcher

from July, 2001 until December, 2002. The plaintiff was originally hired for the position

of dispatcher, then shortly prior to his request for reasonable accommodation and his

subsequent discharge, his duties where expanded to include routing tasks. Routing tasks

require a high level of concentration. By letter dated November 12, 2002 to Harold Mast,

the plaintiff informed his employer that he suffered from disabilities and requested

reasonable accommodation after his duties were expanded so that he could have a quieter

place to work and concentrate.

In the November 12, 2002 letter, the plaintiff requested that he be permitted to

performhisjobdutiesinanareaofthedefendants’officeswhereanydistractionscould

be minimized. The plaintiff also stated that he was open to any alternative

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accommodations that the defendants could suggest in order to reasonably accommodate

his disabilities. The defendants did not provide any reasonable accommodation to the

plaintiff at any time after the plaintiff made the formal request for reasonable

accommodation. The defendants did not suggest or provide any other alternative

reasonable accommodation to the plaintiff at any time after the plaintiff made the formal

request for reasonable accommodation. The defendants never even spoke to the plaintiff

about his request for reasonable accommodation and they never requested any

documentation from the plaintiff or his physicians evidencing his disabilities. The

plaintiff’sreasonableaccommodationrequestwasnotanunduehardshipbecausethe

defendants had/have numbers of areas where the plaintiff could perform his duties with

limited distractions. At all times, the defendants failed to participate in the interactive

processtodetermineareasonableaccommodationfortheplaintiff’sdisabilities.

Subsequent to his engaging in protected activity and/or requesting reasonable

accommodation, the plaintiff was harassed and retaliated against when he was issued

unwarranted and fabricated reprimands and unwarranted and fabricated negative

evaluations. On December 16, 2002, the defendants informed the plaintiff, by a letter

signedbyWayneE.Lapp,thathewasdischarged.Theplaintiff’sdischargeoccurred

approximately one month after the plaintiff formally requested reasonable

accommodation. Thesoleand/ormotivatingreasonfortheplaintiff’sdischarge is

disability discrimination, retaliation and harassment.

In the alternative, the plaintiff maintains that the defendants committed illegal

discrimination and/or retaliation by failing to afford him with reasonable accommodation

and by discharging, harassing and retaliating against him because he was regarded as

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disabled as per the definition provided at 42 U.S.C. § 12102(2) and any other correlating

federal and/or state law. The plaintiff was regarded as disabled by the defendants

because he (1) has a physical or mental impairment that does not substantially limit a

major life activity but was treated by the defendants as constituting such limitation; (2)

has a physical or mental impairment that substantially limits a major life activity as a

result of the attitudes of defendants and/or employees within the defendant company

toward such impairment; or (3) has no such impairment but was treated by the defendants

as having a substantially limiting impairment. The illegal discrimination/retaliation is

basedinwholeorinpartupontheplaintiff’sdisabilitiesasperceivedbythedefendants.

The defendants filed a motion for summary judgment on February 10, 2005. The

plaintiff’srespondedtothemotiononFebruary15,2005.Inhisopposition,theplaintiff

opposed the dismissal of his claims for discrimination, failure to provide reasonable

accommodation; discrimination “regarded as” disabled; retaliation;

discrimination/retaliation pursuant to the PHRA; aiding/abetting as per defendant, Harold

Mast; and negligent/intentional infliction of emotional distress. The plaintiff conceded to

the dismissal of his claim for harassment/hostile work environment.

The plaintiff has sufficiently and reasonably mitigated all damages.

III. Monetary Damages Claimed

Plaintiff demands judgment against the defendant for lost wages (and raises) and

bonuses, lost pension, 401K and various insurance benefits, front pay and back pay, lost

future earning capacity, liquidated damages for intentional, willful, malicious, reckless,

outrageous conduct, compensatory damages, punitive damages, damages for

emotional/psychological distress, reasonable attorney fees and costs incurred herein, such

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other and further relief as permitted under Title I and Title V of the Americans with

Disabilities Act of 1990 (ADA), as codified, 42 U.S.C. § 12101 et seq., as amended by

the Civil Rights Act of 1991, 42 U.S.C. § 1981 et seq., 42 U.S.C. § 1981a et seq. and 42

U.S.C. § 1988 et seq., which incorporates by reference Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000(e) et seq.; the Pennsylvania Human Relations Act, as

amended, Section 5, 43 P.S. § 951 et seq. (PHRA) and state/federal law governing

intentional and/or negligent infliction of emotional distress; and/or as the Court deems

proper, including but not limited to: declaratory and/or injunctive and/or equitable relief,

and litigation and pre- and/or post-judgment interest on all money awarded and damages

for delay.

Recently the 7th Circuit has concluded that compensatory and punitive damages

are unavailable under the ADA for retaliation claims, Kramer v. Banc of Am. Sec., 355

F.3d 961 (7th Cir. 2004). The court ruled that the only remedies available for ADA

retaliation claims are equitable remedies such as back pay and reinstatement. In addition,

the Kramer court determined that since equitable remedies are granted by a judge, there

is no right to a jury trial on the issue of ADA retaliation claims.

Back pay is permitted under both the ADA and the PHRA and back pay and

interest on back pay is not included in the damage caps, see 42 U.S.C. § 1981a(b)(2),

which provision has been incorporated into the ADA, 42 U.S.C. § 12117(a). Front pay is

also permitted and the United States Supreme Court has said that front pay is not

included in the caps concerning Title VII cases, Pollard v. E.I. du Pont de Nemours &

Co., 532 U.S. 843 (2001). Injunctive relief is also available. ADA compensatory damage

caps are as follows: 100 employees or less, $50,000; 101-200 employees, $100.000; 201-

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500 employees, $200,000; 500+ employees, $300,000, 42 U.S.C. § 1981a(b)(3).

Compensatory damages include future pecuniary losses, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses,

42 U.S.C. § 1981a(b)(3).

Punitive damages are available under the ADA with the same caps applying to

punitive damages under the ADA as for compensatory damages, see 42 U.S.C. §

1981a(b)(3), which provision has been incorporated into the ADA, 42 U.S.C. § 12117(a).

InordertoobtainpunitivedamagesundertheADAanindividualmustshowthat“the

employer has engaged in intentional discrimination and has done so with malice or

recklessindifferencetothefederallyprotectedrightsofanaggrievedindividual.” Id.;

Kolstad v. American Dental Association, 119 S.Ct. 2118 (1999). Punitive damages are

not available under the PHRA, Hoy v. Angelone, 720 A.2d 745 (Pa. 1998).

An award of attorney fees under the PHRA is discretionary, Hoy v. Angelone, 720

A.2d 745 (Pa. 1998). The ADA statute also says that attorney fees may be awarded, 42

U.S.C. § 12205 and 42 U.S.C. § 12117.

In Gagliardo v. Connaught Laboratories Inc., 311 F.3d 565 (3rd Cir. 2002), the

Third Circuit held that a claimant is not precluded from recovering greater damages

under a state law claim that is virtually identical to the capped federal claim. The court

reasoned that the absence of a cap under Pennsylvania state law for damages indicates

that the state law was intended to provide a remedy beyond that of its federal counterpart.

So, pursuant to Gagliardo, under the PHRA a plaintiff can recover compensatory

damages for disability discrimination claims without any caps which includes emotional

distress damages. And, a plaintiff can recover unlimited compensatory damages for a

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disability retaliation claim under the PHRA, even if the federal ruling in Kramer is held

to apply in the Third Circuit. Since Pennsylvania state law does not limit the remedies

available pursuant to a disability retaliation claim, a claimant under the PHRA seeking

redress for disability retaliation is not limited to equitable relief.

The plaintiff has also sued for negligent/intentional infliction of emotional distress

pursuant to Pennsylvania state common law.

IV. Trial Witness List

Theplaintiff’slistofwitnessesfortrialisattachedheretoasExhibit A.

V. Schedule of Exhibits

Theplaintiff’sscheduleofexhibitsfortrialisattachedheretoasExhibit B.

IV. Estimated Time for Trial

Counsel for plaintiff estimate that this trial will take approximately 3-4 days total.

Respectfully submitted by:

SIGNATURE CODE: SAZ4759

s/Sharon Ann Ziegler, Esq.

Sharon Ann Ziegler, Esq.

PA Attorney ID # 64027

5118 Foxfire Trail

Kingsport, TN 37664

(423) 288-9623

JOHN NEUMANN HICKEY, Esq.

PA Attorney ID# 618896

20 West Front Street

Media, PA 19063

(610) 891-8883

ATTORNEYS FOR PLAINTIFF

DATE: February 17, 2005

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CERTIFICATE OF SERVICE

I, Sharon Ann Ziegler, Esq., the undersigned and attorney of record for the

plaintiff in the case Liberati v. BRT, Inc. et al., Civil Action File No.: 2:05-cv-1661

hereby certifies that a true and correct copy of Plaintif’sPretrial Memorandum, was

served on February 17, 2006 via e-mail transmission and regular U.S. mail, to the

following counsel of record:

Michael J. Crocenzi, Esq.

Goldberg Katzman

320 Market Street

Strawberry Square

P.O. Box 1268

Harrisburg, PA 17108-1268

Attorney for Defendants

SIGNATURE CODE: SAZ4759

s/Sharon Ann Ziegler, Esq.

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